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March 22, 2011

Judge Chin Denies Google Book Settlement

The question presented is whether the ASA [Amended Settlement Agreement] is fair, adequate, and reasonable. I conclude that it is not.

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action -- which was brought against defendant Google Inc. to challenge its scanning of books and display of "snippets" for on-line searching -- to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.

Accordingly, and for the reasons more fully discussed below, the motion for final approval of the ASA is denied.

Judge Chin also notes that "many of the concerns raised in the objections would be ameliorated if the ASA were converted from an 'opt-out' settlement to an 'opt-in' settlement."

The denial is without prejudice, which leaves Google and the Authors Guild free to go back to the drawing board and re-negotiate a revised settlement.

The battle is certainly far from over, but this is a positive for authors. It is funny to have read so many opinions that authors and the publishing industry overstated their case, and now to see a judge agree with them.

* Google is allowed to continue scanning and searching in exchange for cash payments on the order of (but perhaps not exactly) the $60 in the present settlement, and it’s required to provide an opt-out. Very few people have argued that this form of settlement would be beyond the court’s power. The precise explanation of how this would be distinguishable from the present settlement, although quite feasible, will require some nuance and subtlety.

* The Display Uses — Consumer Purchase, Institutional Subscription, etc. — are either gone entirely ore are offered on an opt-in basis. The difference between these two possibilities is not large, since, in effect, Google already offers an opt-in through the Partner Program.

* The libraries receiving digital copies are released from liability but are even more tightly restricted in the uses they can make than under the present settlement.

* The fates of other facets of the settlement such as the Research Corpus, will be hammered out in the negotiations.

I know it's far from over, but it's so nice to see the judge inform Google that NO, having a lot more money than your victims does NOT mean that you get to do whatever you want with their property. (Also, personally, I opted out of Google Books when my books were published with a copyright page. That's supposed to be all the opt-out I need.)

Apparently a four-hundred-pound gorilla doesn't always get to sit anywhere it wants to.